Le Knapp: Prenuptial Agreements In Utah

If it is important to you that your new partner sign a prenuptial agreement, you should discuss the issue with her as soon as the relationship becomes serious, but at least 6 months before the wedding. If you delay discussing this matter with her, she may feel pressured and resentful. These feelings take time to deal with, and weeks before the wedding is not long enough. Consult with an experienced Utah attorney if you and your would be spouse are considering a prenuptial agreement.
Persons getting remarried are more likely to consider a prenuptial agreement that specifies who will get what in the event of divorce or death. Some people feel that a prenuptial agreement destroys the romance of a relationship and that it sets up a couple to divorce, but the reality is that a prenuptial agreement no more causes a divorce than a seatbelt causes a wreck. Rather prenuptial agreements go a long way in resolving many of the issues that may arise in the event of divorce.

Today, the prenuptial agreement is a common planning device in second or later marriages in which the prospective spouses wish to preserve their assets for children and relatives from a prior marriage. More and more young professionals are also entering into prenuptial agreements. Even couples with few assets and little hope of acquiring substantial wealth can benefit from the prenuptial agreement. Although the requirements for a valid prenuptial agreement vary among the jurisdictions, states often insist that the parties provide full disclosure of their assets, or at least require full disclosure by the party who is seeking to protect his assets from later claims by the other. Because financial matters are often at the heart of marital disputes, the information the prospective spouses glean during the negotiations over the prenuptial agreement can strengthen the marriage. Moreover, because of the required disclosure, neither spouse is likely to have the nasty surprise of learning only after the wedding vows that the other is less financially sound than he appeared during the courtship.
In short, the prenuptial agreement gives the couple the opportunity to learn each other’s views and expectations concerning their assets. The couple’s disagreement on important financial matters prior to the wedding is a valuable piece of information that could, and in some instances probably should, affect the decision to marry. The romantic view of marriage—one without concern for finances, commitment, and responsibility—is an incomplete picture: marriage is, and in some respects has to be, a business. The agreement is not merely a contingency plan for death or divorce; rather, the contract encourages the couple to recognize the economic aspects of marriage and to plan accordingly.
The value of a prenuptial agreement (which is drawn up by an attorney) is in the communication between the partners about their relationship. Sometimes the partners may have different ideas about how things will be handled and a discussion will clarify misunderstandings. Some of the items included in prenuptial agreements are:
• Names-will the wife keep her maiden name?
• Adoption-will the husband adopt the new partner’s children?
• Religion-what religion will the children be reared in?
• Domicile-whose career will determine where the couple lives?
• Money-joint or separate accounts? Who is financially responsibile for the children? Will the spouses own property as a couple or as individuals? What will the children inherit from whom? Are debts in the marriage considered joint debts or not? Who is responsible for bringing how much income into the unit? How will the money be divided and/or used?
• Financial matters in the event of a divorce.
Having clear answers to such questions may be beneficial to the couple.

Validity of Prenuptial Agreements

Under Utah law, prenuptial agreements are valid and can be enforced in a court of law. Utah law looks prenuptial agreements as legally binding contracts that couples enter into in contemplation of marriage. It essentially means that the two spouses negotiate and sign the agreement to decide what will happen when they marry. A prenuptial agreement must be signed before the marriage. If it is signed after the marriage, its not a prenuptial agreement.
A prenuptial agreement is essentially a mutually agreed plan on how the assets of the spouses will be divided in case they divorce. It is basically concerned with the division of the assets of the spouses in case of a divorce. Assets include real property like land and building, personal property like cars, retirement accounts, etc.
While a prenuptial agreement must be signed before the parties marry, it becomes effective only after the parties are legally married.

Who Should Get a Prenuptial Agreement?

Whether or not you should get a prenuptial agreement is a decision that has to be taken by you and your would be spouse. There has to be two parties – you and your would be spouse. You alone cannot make a prenuptial agreement. In the absence of a prenuptial agreement, Utah law will determine the division of your assets in the event of a divorce. As such by having a valid prenuptial agreement in place, you are ensuring that your assets are dealt with according to your wishes in case of a divorce. If you do not have a prenuptial agreement, you essential leave the distribution of your assets post your divorce in the hands of the State of Utah.
If you are considering a prenuptial agreement before your marriage, speak to an experienced Utah attorney. Ideally you should consider a prenuptial agreement in the following cases:
• Debt – Both of you or your spouse is likely to bring in a major debt
• Property – Both of you or your spouse is bringing in property into the marriage
• Disparity – There is significant economic disparity between the two of you. You may be much better off then your would be spouse.
• Second Marriage – This isn’t the first marriage for either or both spouses.
• Children – Either or both spouses have children from another marriage.
An experienced Utah attorney can review your circumstances and draft a tailor made prenuptial agreement for you.
What does a prenuptial agreement cover?
Each prenuptial agreement is unique and made according to the circumstances of the parties to the agreement. Do not use a prenuptial agreement used by your friend or relative. Speak to an experienced Utah attorney for advice on prenuptial agreements. A prenuptial agreement will generally include all or some of the following:

• Property rights – What will happen to the properties of both spouses in the event of a divorce. Under Utah law, a prenuptial agreement can include properties outside the State of Utah. It will all also determine who can create security interest, encumber, mortgage, lease, assign, use, transfer, dispose of or otherwise manage property.
• Alimony – It will specify the alimony to be paid in case of a divorce.
• Insurance benefits
• Any other issues that the parties may mutually agree on as long as it does not violate Utah law and public policy.
What cannot be included in a prenuptial agreement
Under Utah law, certain things cannot be included in a prenuptial agreement. These include:
• Child support
• Medical insurance for children
• Child care coverage
• Health and medical provider expenses for children
It essentially means that a prenuptial agreement cannot limit or impose a cap on the amount of the above. The logic behind this is that child support belongs to the child and not the parents. While it is true that child support is paid to the custodial parent, it is for the benefit of the child. The money is meant to be used for support the child and not for any other purpose. Child support orders can also change if there is a change in circumstances. Utah courts award child support using child support guidelines.
Likewise, a prenuptial agreement cannot determine child custody in advance. During the course of the divorce, the spouses may reach an agreement on child custody but it cannot be part of a prenuptial agreement. Such a clause in a prenuptial agreement will not be enforced by a court in Utah. You can free to include child support and child custody clauses in your prenuptial agreement. Having these clauses will not invalidate the entire agreement. However, it is for you and your spouse to voluntarily adhere to the agreed terms on child support and child custody. In case of any dispute, the courts will not enforce child support and child custody according to your prenuptial agreement. Instead they will pass orders according to the best interests of the child and child support guidelines.
Alimony or Spousal Support
Under Utah law, a prenuptial agreement can include the amount and duration of alimony or spousal support. Utah law also permits the elimination of alimony through a prenuptial agreement. A couple can have a valid prenuptial agreement in place that explicitly states that no alimony will be paid in case of a divorce and the court will uphold the no alimony clause. However if the no alimony clause will result in one spouse becoming impoverished and having to seek assistance, the court will over look the clause and decide on the amount of alimony.

Uniform Premarital Agreement Act

The State of Utah adopted the Uniform Premarital Agreement Act in 1994. This Act attempts to harmonize the law on prenuptial agreement across the country. The Act states that premarital agreements should be enforced as long as they are voluntary, the terms are not unconscionable, there was fair and reasonable disclosure of the parties’ property and financial obligations, and the agreement does not cause either party to become eligible for public assistance or support. A court would retain the right to modify such agreements, even if otherwise valid, to the extent necessary to require a party to financially support a former spouse to the extent necessary to prevent that person from transferring his or her economic dependency onto the state. After this Act, prenuptial agreements came to enjoy a presumption of validity, as long as they were made voluntarily and with full disclosure of financial information. Some courts still maintain the additional requirement that an agreement be substantively “fair” to both parties.

Under Utah divorce laws, a prenuptial agreement will be valid if it meets certain conditions:

• Written – Oral prenuptial agreement will not be enforced by a court in Utah. All prenuptial agreements must be in writing.

• No consideration – Usually in a contract there is some consideration. However for a prenuptial agreement to be valid, there need no be any consideration.

• Contemplation of marriage – A prenuptial agreement must be made in contemplation of marriage. The parties must have determined the terms of the agreement with a definite and upcoming marriage in mind. If the marriage does not happen, the prenuptial agreement does not come into effect.

• Voluntarily singed – Both spouses must have signed the agreement voluntarily.

• Fair and reasonable disclosure – A prenuptial agreement will be invalid if either spouse failed to provide fair and reasonable disclosure of financial obligations and assets. The spouses should have adequate or reasonable knowledge of the each other’s financial obligations and assets.
Ultimately it is for the judge to determine if a prenuptial agreement can be enforced. If you are seeking to enforce a prenuptial agreement in Utah, speak to an experienced Utah attorney.

Changes to a prenuptial agreement

A prenuptial agreement signed before the marriage can be changed by the spouses after the marriage. The spouses can also revoke the agreement. An experienced Utah attorney can assist you change or revoke your existing prenuptial agreement.

Customized Prenuptial Agreement

Every couple is different. There is no specific prenuptial agreement that can be used by all couples. The agreement must be tailored to the specific requirements of each couple. What may work for one couple may not necessarily work for another. The first step in making a prenuptial agreement is meeting an experienced Utah lawyer. The lawyer will ask you questions to know what exactly you are looking for and will also want to ensure that both of you are voluntarily entering into the agreement. After that the lawyer will draft a watertight tailormade prenuptial agreement for you.